Avis juridique important

Judgment of the Court (Fifth Chamber) of 26 November 1985. - Cockerill - Sambre SA v Commission of the European Communities. - ECSC - Notification of a decision. - Case 42/85. European Court reports 1985 Page 03749

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . MEASURES ADOPTED BY THE INSTITUTIONS - ECSC INDIVIDUAL DECISIONS ADDRESSED TO AN UNDERTAKING - NOTICE GIVEN AT REGISTERED OFFICE - DUE NOTIFICATION - REQUEST FOR NOTICE TO BE GIVEN AT ANOTHER ADDRESS - IMMATERIAL

( ECSC TREATY , ART . 15 , SECOND PARAGRAPH )

2 . PROCEDURE - TIME-LIMITS FOR THE BRINGING OF ACTIONS - EXPIRY - UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE - DEFINITION

1 . NOTICE OF AN ECSC INDIVIDUAL DECISION ADDRESSED TO AN UNDERTAKING MAY BE PROPERLY AND VALIDLY GIVEN AT THE LATTER ' S REGISTERED OFFICE , EVEN IF THE UNDERTAKING HAS ASKED THE COMMISSION TO GIVE NOTICE AT ANOTHER ADDRESS .

2 . IF NOTICE OF AN ECSC INDIVIDUAL DECISION HAS BEEN PROPERLY AND VALIDLY GIVEN AT THE REGISTERED OFFICE OF THE UNDERTAKING TO WHICH IT IS ADDRESSED , NEITHER THE FACT THAT THE COMMISSION DID NOT REPLY TO THE UNDERTAKING ' S LETTERS SEEKING TO HAVE NOTICE GIVEN AT ANOTHER ADDRESS , NOR THE UNDERTAKING ' S INTERNAL PROBLEMS OF COMMUNICATION CONSTITUTE UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY .

IN CASE 42/85

COCKERILL-SAMBRE SA , SERAING ( BELGIUM ), REPRESENTED BY M . WAELBROECK AND A . VANDENCASTEELE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , 34 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER E . LASNET , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION CONCERNING , AT THE PRESENT STAGE OF THE PROCEDURE , THE ADMISSIBILITY OF THE APPLICATION MADE BY COCKERILL-SAMBRE SA FOR A DECLARATION THAT THE COMMISSION ' S INDIVIDUAL DECISION C ( 84 ) 1958/1 OF 19 DECEMBER 1984 IMPOSING A FINE ON THE APPLICANT IS VOID ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 14 FEBRUARY 1985 , COCKERILL-SAMBRE SA , A STEEL UNDERTAKING WHOSE REGISTERED OFFICE IS AT SERAING , BELGIUM , BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 36 OF THE ECSC TREATY FOR A DECLARATION THAT COMMISSION DECISION C ( 84 ) 1958/1 OF 19 DECEMBER 1984 IMPOSING A FINE OF 620 570 ECU ON THE APPLICANT FOR EXCEEDING THE QUOTAS FIXED FOR THE FIRST AND SECOND QUARTERS OF 1983 UNDER COMMISSION DECISION 1696/82 OF 30 JUNE 1982 ( OFFICIAL JOURNAL , L 191 , P . 1 ) IS VOID . IN THE ALTERNATIVE , THE APPLICANT ASKS THE COURT TO REDUCE THE AMOUNT OF THE FINE .

2 THE DECISION AT ISSUE WAS ADDRESSED TO APPLICANT COMPANY ' S REGISTERED OFFICE BY A REGISTERED LETTER DATED 8 JANUARY 1985 IN RESPECT OF WHICH THE ACKNOWLEDGMENT OF RECEIPT WAS SIGNED ON 9 JANUARY 1985 . THE COMPANY THEN TRANSMITTED THE DOCUMENT TO ITS CENTRAL ADMINISTRATION IN BRUSSELS , WHERE IT WAS RECEIVED ON 11 JANUARY 1985 .

3 THE COMMISSION RAISED A PRELIMINARY OBJECTION OF INADMISSIBILITY ALLEGING THAT THE APPLICATION WAS OUT OF TIME . IT CONTENDED THAT ACCORDING TO ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY READ IN CONJUNCTION WITH ARTICLES 33 AND 36 OF THE ECSC TREATY , ARTICLE 81 OF THE RULES OF PROCEDURE OF THE COURT AND ARTICLE 1 OF ANNEX II TO THOSE RULES , THE APPLICATION SHOULD HAVE BEEN BROUGHT WITHIN ONE MONTH AND TWO DAYS OF THE DAY FOLLOWING THAT ON WHICH THE APPLICANT RECEIVED NOTICE OF THE DECISION . SINCE NOTICE WAS RECEIVED BY THE APPLICANT ON 9 JANUARY 1985 , THE APPLICATION SHOULD HAVE BEEN LODGED NOT LATER THAN 12 FEBRUARY 1985 .

4 THE APPLICANT CONTESTS THE PROPOSITION THAT NOTICE OF THE DECISION TO ITS REGISTERED OFFICE AT SERAING CAUSED TIME TO RUN IN REGARD TO THE TIME-LIMIT FOR THE BRINGING OF ACTIONS . IT EMPHASIZES THAT AS EARLY AS 29 MAY 1984 IT INFORMED INTER ALIA THE COMMISSION BY LETTER THAT IT HAD DECIDED TO TRANSFER THE OFFICES OF THE PRESIDENT AND OF THE DIRECTOR-GENERAL AS WELL AS CERTAIN OTHER DEPARTMENTS OF THE COMPANY ' S TOP MANAGEMENT TO BRUSSELS . FURTHERMORE , SINCE THE COMMISSION FAILED TO ACT UPON THAT CHANGE , THE APPLICANT EXPRESSLY ASKED IT , IN TWO LETTERS OF 21 DECEMBER 1984 , TO ADDRESS ' ALL CORRESPONDENCE ' TO ITS CENTRAL ADMINISTRATION IN BRUSSELS ' IN ORDER TO AVOID ITS BEING LOST OR DELAYED AT THE REGISTERED OFFICE IN SERAING AND TO MARK IT FOR THE ATTENTION OF THE PERSON FOR WHOM IT WAS ULTIMATELY INTENDED OR OF G . PAULUS , GROUP QUOTAS , WHO WILL TRANSMIT IT ' . HOWEVER , WITHOUT INFORMING THE APPLICANT THAT IT WAS UNWILLING TO ACCEDE TO THAT REQUEST , THE COMMISSION SENT THE CONTESTED DECISION ON 8 JANUARY 1985 TO THE REGISTERED OFFICE AT SERAING WHICH TRANSMITTED IT WITH THE GREATEST POSSIBLE DILIGENCE TO THE APPLICANT ' S ADMINISTRATIVE HEADQUARTERS IN BRUSSELS .

5 THE APPLICANT ACCEPTS THAT IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY , THE COMMISSION IS ENTITLED TO GIVE NOTICE OF SUCH A DECISION AT THE REGISTERED OFFICE OF THE UNDERTAKING CONCERNED . HOWEVER , SINCE THE PLACE AT WHICH NOTICE MUST BE GIVEN IS NOT EXPRESSLY STATED EITHER IN THE TREATY OR IN THE PROVISIONS IMPLEMENTING IT , NOTHING PREVENTS AN UNDERTAKING FROM ASKING THE COMMISSION TO GIVE IT NOTICE OF THE DECISIONS WHICH IT TAKES CONCERNING IT AT AN ADDRESS WHICH PERMITS IT TO REACT AS RAPIDLY AS POSSIBLE . CONSEQUENTLY , IF THE COMMISSION IGNORES SUCH A REQUEST ON THE PART OF THE UNDERTAKING , NOTICE OF THE COMMISSION ' S DECISION IS NOT DULY GIVEN AND THE TIME-LIMIT FOR BRINGING AN ACTION IS TO BE CALCULATED FROM THE TIME AT WHICH THE UNDERTAKING ACTUALLY ACQUIRED KNOWLEDGE OF THE DECISION . IN THIS CASE , THE APPLICANT ONLY ACQUIRED KNOWLEDGE OF THE DECISION ON 11 JANUARY 1985 , WITH THE RESULT THAT THE ACTION WAS BROUGHT WITHIN THE PRESCRIBED TIME-LIMIT .

6 IN THE ALTERNATIVE , THE APPLICANT CLAIMS THAT THE COMMISSION IS NOT WELL PLACED TO RAISE AN OBJECTION OF INADMISSIBILITY IN THIS CASE SINCE THE FACT THAT THE APPLICANT ONLY BECAME AWARE OF THE DECISION AT ISSUE ON 11 JANUARY 1985 IS DUE TO THE COMMISSION ' S NEGLIGENCE . IN ANY EVENT , THERE WERE A NUMBER OF UNFORESEEABLE CIRCUMSTANCES IN THIS CASE WHICH OUGHT TO BE CONSIDERED IN FAVOUR OF THE APPLICANT .

7 THE COMMISSION REPLIES THAT NOTICE OF A DECISION SUCH AS THE ONE AT ISSUE MUST BE GIVEN AT THE REGISTERED OFFICE OF THE UNDERTAKING CONCERNED IN ORDER TO AVOID ANY AMBIGUITY . IN THE ALTERNATIVE , THE COMMISSION OBSERVES THAT NEITHER THE LETTER OF 29 MAY 1984 NOR THOSE OF 21 DECEMBER 1984 MADE IT CLEAR THAT THE COMMISSION WAS REQUIRED TO GIVE NOTICE OF A DECISION IMPOSING A FINE ON THE APPLICANT COMPANY AT THE LATTER ' S NEW ADDRESS .

8 IT IS NOT DISPUTED THAT ACCORDING TO THE PROVISIONS REFERRED TO ABOVE BY THE COMMISSION THE TIME-LIMIT FOR BRINGING AN ACTION IN THIS CASE WAS ONE MONTH AND TWO DAYS FROM THE DAY AFTER THE ONE ON WHICH THE APPLICANT RECEIVED NOTICE OF THE DECISION AT ISSUE . IT IS ALSO NOT DISPUTED THAT A REGISTERED LETTER WITH ACKNOWLEDGMENT OF RECEIPT IS A PERFECTLY SUITABLE METHOD OF GIVING NOTICE INASMUCH AS IT ENABLES THE DATE FROM WHICH TIME BEGINS TO RUN TO BE DETERMINED , AS THE COURT EXPRESSLY HELD IN ITS JUDGMENT OF 30 MAY 1984 ( CASE 224/83 FERRIERA VITTORIA SRL V COMMISSION ( 1984 ) ECR 2349 ).

9 THE ONLY QUESTIONS WHICH REMAIN TO BE DECIDED BY THE COURT ARE WHETHER THE COMMISSION COULD PROPERLY GIVE NOTICE OF THE DECISION AT ISSUE AT THE APPLICANT ' S REGISTERED OFFICE IN SERAING AND IF THAT IS SO , WHETHER THE APPLICANT HAS DEMONSTRATED THE EXISTENCE OF UNFORESEEABLE CIRCUMSTANCES OR FORCE MAJEURE WITHIN THE MEANING OF ARTICLE 39 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY .

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

HEREBY :

( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE ;

( 2 ) ORDERS THE APPLICANT TO PAY THE COSTS .